When was the last time you bought a pair of shoes without trying them on? Just as we try to find things that “fit” us in our daily lives, so when it comes to a time in our marriage when either we, or our spouse, is considering divorce, we should make sure there is a “fit.”

The process you select for the resolution of your particular issues needs to “fit” you. Whether you select litigation, mediation or collaborative law, you first need to explore which process works best for you.

The attorney or mediator you select needs to “fit.” Personalities and work styles differ greatly, the best attorney for someone else may not work for you. Consult with more than one attorney or mediator to see if the two of you are a “fit.” Don’t just ask legal questions. Ask about how the two of you will work through the process together.  This is YOUR divorce.

The solutions you arrive at should “fit” your marriage. A solution that worked for someone else may not work for you and your spouse. There is no “one size fits all.”

The custom process called Collaborative Divorce:
The question you must first ask yourself is “ Will my divorce proces control me, or will I be in control of my future?”

At a time when your marriage is falling apart, you will feel as if the world about you is falling as well. This is true whether or not you are the one initiating the divorce. The one divorce process which focuses, and depends, on the clients’ participation is Collaborative Divorce.

You decide how often you meet, you decide which problems need to be tackled first. There is no Judge demanding that your financial affidavits be submitted by such and such a date. There are no court conferences being called in the middle of your work day, or at a time when it is difficult to take time off from work.  There is no threat of trial hanging over you, forcing you to accept a settlement that will not work for you.

Collaborative Divorce gives you time to breathe, it lets you adjust to the idea of you and your spouse diverging onto different life paths. It lets your children adjust to the “new” family structure.

Since you may stop the Collaborative Process at any time, you have nothing to lose by trying it on. It just may be the perfect fit.

by: Alexander Korotkin

§236(B), often referred to as the “Equitable Distribution Law,” divorce lawyers have had to deal with transfers of, or encumbrances on, marital property which might frustrate the eventual disposition of a divorce case. Immediately after the enactment of the Equitable Distribution Law, attorneys attempted to prevent transfers and encumbrances of marital property by various means, such as seeking injunctive relief to prevent or undo any transfers, filing notices of pendency with regard to real property which would form part of equitable distribution, and seeking other forms of relief from the courts. Eventually, the case law made clear that a notice of pendency cannot be filed in a divorce case since an equitable distribution action did not directly affect the title to, or the possession, use or enjoyment, of real property. This left injunctive relief as the only means to restraining transfers during the pendency of an action. Since the burden of obtaining an injunction was considerable, the moving party had to make a requisite showing that the party to be restrained was threatening to dispose, or was already disposing, of marital assets so as to adversely affect the movant’s ultimate rights to equitable distribution. Typically, the burden of making the application, and the expenses of doing so, fell on the non-titled spouse. The different courts in New York State took different approaches to address this issue. Here in Rochester, the supreme court justices handling matrimonial cases would issue, if requested, standing orders which restrained the parties from substantially altering their financial positions. However, the standing orders would be issued in most cases after a motion was brought or after a preliminary conference was held. Now, effective Sept. 1, 2009, there is a statute which provides for an automatic stay in all matrimonial actions. The present DRL §236(B)(2) has been redesignated as DRL §236(B)(2)(a) and subparagraph (b) has been added, which reads: b. With respect to matrimonial actions which commence on or after the effective date of this paragraph, the plaintiff shall cause to be served upon the defendant, simultaneous with the service of the summons, a copy of the automatic orders set forth in this paragraph. The automatic orders shall be binding upon the plaintiff in a matrimonial action immediately upon the filing of the summons, or summons and complaint, and upon the defendant immediately upon the service of the automatic orders with the summons. The automatic orders shall remain in full force and effect during the pendency of the action, unless terminated, modified or amended by further order of the court upon motion of either of the parties or upon written agreement between the parties duly executed and acknowledged. The automatic orders are a follows: (1) Neither party shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of, without the consent of the other party in writing, or by order of the court, any property (including, but not limited to, real estate, personal property, cash accounts, stocks, mutual funds, bank accounts, cars and boats) individually or jointly held by the parties, except in the usual course of business, for customary and usual household expenses or for reasonable attorney’s fees in connection with this action. (2) Neither party shall transfer, encumber, assign, remove, withdraw or in any way dispose of any tax deferred funds, stocks or other assets held in any individual retirement accounts, 401K accounts, profit sharing plans, Keogh accounts, or any other pension or retirement account, and the parties shall further refrain from applying for or requesting the payment of retirement benefits or annuity payments of any kind, without the consent of the other party in writing, or upon further order of the court. (3) Neither party shall incur unreasonable debts hereafter, including, but not limited to further borrowing against any credit line secured by the family residence, further encumbrancing any assets, or unreasonably using credit cards or cash advances against credit cards, except in the usual course of business or for customary or usual household expenses, or for reasonable attorney’s fees in connection with this action. (4) Neither party shall cause the other party or the children of the marriage to be removed from any existing medical, hospital and dental insurance coverage, and each party shall maintain the existing medical, hospital and dental insurance coverage in full force and effect. (5) Neither party shall change the beneficiaries of any existing life insurance policies, and each party shall maintain the existing life insurance, automobile insurance, homeowners and renters insurance policies in full force and effect. The Office of Court Administration has promulgated a Rule already and is in the process of issuing an Official Form incorporating the Notice required under the Statute. Until the official form is issued, a divorce attorney should attach a notice to the summons stating that, upon service, an order is in effect and then reciting, word-for-word, the five elements listed above. In my experience, the Monroe County Clerk’s Office will provide a form at the time the summons is filed, unless the requisite notice is already attached to the summons. This legislation basically preserves the status quo during the pendency of a matrimonial action by shifting the burden of seeking relief from a spouse asking for the imposition of an injunction to a spouse moving to vacate or modify that restraint. What is unclear at this time, is how this automatic order will be enforced, and what are the remedies for its violation.

By Lauren Behrman, Ph.D. and Jeffrey Zimmerman, Ph.D.

We often hear attorneys say that while they find coaches extremely helpful in their collaborative cases, they have difficulty in explaining to their clients the value of hiring a coach. They ask for help in responding to their clients’ questions such as, “I already have a therapist, so I don’t need a coach”, or “I don’t need a mental health provider- it’s my wife (husband) who’s the crazy one”, or “This process is expensive enough, I don’t want to add any more fees.”

Divorce is a life transition with legal, financial and emotional ramifications. All three impact the collaborative process.

Question: ”We are using the collaborative model to preserve our funds.  We already have a marital therapist.  Do we really need to hire a divorce coach?”

A coach might seem like a luxury in a divorce that is already way too expensive.  Most divorces, even when there is a great deal of good will between the parties involve intense emotions over core issues such as when you will each have time with the kids, whether you will receive or pay child support and who will keep the home you lived in together. When people experience highly charged emotions (anger, fear and guilt and deep sadness are most common in divorce situations) or feel extremely threatened, they tend to act impulsively without thought and make decisions they regret later. They also say things in our collaborative meetings that detract from the process and can even lead to major problems in going forward. While I make sure your legal rights get protected, the coach helps make sure everything is being done to help the process go well so that we can be as successful as possible, as quickly as possible. For example, sometimes one parent focuses more from a logical perspective, while the other focuses more on the emotional aspects of the divorce. This can be like one parent talking Spanish and the other French. The coach can serve as a translator of sorts, making sure the communication among all of us is going well and is clear and at the right pace.”

Question: “What is the role of the divorce coach? We already have a marital therapist.”

The role of the coach is to help manage and contain intense feelings as they arise in the process of divorce so they don’t interfere with making decisions that may impact your children for many years to come. The unique role of coach is different from that of a therapist in that a coach doesn’t delve into understanding why a person feels as they do, they simply help manage the feelings. You could look at it in the following way: a therapist is someone to whom you bring your baggage and she or he helps you open it up, unpack and decipher the contents. A divorce coach is someone to whom you bring your baggage and, without opening it, he or she helps you carefully carry it across the street.

The coaches also help us all deal with the personality factors that get in the way of settling the divorce - client’s as parents and even ours as attorneys. The coaches are experts in helping keep emotions and personalities from derailing the collaborative process.

Another important function coaches can provide is help with keeping lines of communication open between spouses, or creating ones where they did not exist. By modeling healthier ways of problem solving, talking and listening to one another, the coaches often prove vital to facilitate the divorcing couple’s difficult conversations, discussions and negotiations.

Question: “Won’t a Coach Drive Up the Costs?  This is already expensive enough.”

Ironically, although there is another paid professional working in the case, a coach usually saves the client money because, unknowingly, and all too often, clients treat their attorneys as their emotional and mental sounding boards. They talk to their lawyer about their challenges and the dynamics with their spouse and, while some of this is pertinent to the outcome of the case, at $300 and up an hour, this is incredibly expensive support!  Not only that, but I, as a lawyer, while sensitive to your emotions, am not trained to deal with them. If you were thinking about renovating your home, would you ask the electrician to also check to make sure the plumbing was OK? Probably not.

In many collaborative cases here in New York, a two coach model is used, where each person has their own coach to work with.  We are also exploring a one coach model, where the coach serves as a process facilitator to the entire team.  Some of our coaches are trained in using this model, and we will be studying and training in this model to see if our practice group will use it more frequently as an option in our collaborative cases.

Some Additional Talking Points:

The Long-lasting Impact of Collaborative Divorce Coaches

Collaborative divorces are not magic carpets that carry couples painlessly through their family transitions. They can actually be harder to endure than traditional divorces or mediation because they challenge each person to operate from a much more mature level of functioning.   As a result of going through this challenging process, the benefits can be immense and long lasting as parents and children benefit from better communication and hopefully far less acrimony, conflict and hostility.  Members of the divorcing couple often begin implementing the tools the coaches have taught them and modeled for them to work with each other, by talking through their difficulties, solving problems, making joint decisions and compromising instead of acting out in some way.

Couples can actually learn healthier ways to communicate with one another, co-parent and get through difficult situations. Peggy Thomson, PhD and attorney Pauline Tesler, co-authors of Collaborative Divorce, note that “about one in ten of our couples decide to get back together because they’ve learned some basic problem-solving and communication skills.” Whether the couple reconciles or not, these tools, once learned, are beneficial going forward, far beyond when the children turn 18.

The Potential Downsides of Using a Divorce CoachAn obvious drawback to having a coach is that it adds another bill to pay. In general, the Collaborative process can initially appear to have higher fees initially than the mediation alternative. This can make clients apprehensive and feel more overwhelmed until they learn more about the role of the coaches. However, when mediation is not desired or successful the costs of the entire process can be far greater.

When it is perceived as an extra, nonessential or optional part of the process, husbands and wives won’t necessarily be on the same page on the value of coaches. In some situations, one spouse may want a coach and the other might not. When this is resolved by using one coach or no coach at all, it sets up a different kind of problems. One or the other of the divorcing spouses may feel disempowered.  Either the person who doesn’t have a coach may feel disempowered and/or the person who wanted a coach and didn’t hire one, may feel disempowered. An alternative can be to go to a one-coach model, where the coach (like the financial professional) is a neutral who works with both parties.

Finally, it’s more cumbersome to have another set of professionals in the mix when trying to schedule meetings. It is common for husbands and wives to meet separately with their coaches but when there are five, six, or seven way sessions (two attorneys, two coaches, the financial and child specialists and the divorcing couple), scheduling can get zany. Using some of the free on-line services for scheduling meetings (e.g., doodle.com or timebridge.com) can be a big help.

How Not to Use Divorce Coaches

Every once in a while, there are clients who say they want to see how the divorce goes before they decide if they want to hire divorce coaches. In theory, this makes great sense, but in practice, this is a recipe for disaster. This is like having a bad headache and waiting hours before taking a painkiller.  The headache may be too intense at that point and not even respond to the painkiller.  All too often in these cases, the coaches are called in only after the tensions have risen to levels that are off the charts and counsel are afraid the case will “tank” because the divorcing couple is usually so distraught, hurt or distrustful of one another that the Collaborative modality may not withstand the pressure. The coaches then have the task of trying to clean up the wreckage and get the case back on track. However, when coaches are brought in late in the process and the case continues to deteriorate, the clients’ skepticism of the benefit of coaches can then seem well-founded. Coaches can’t stop a case from going south late in the game any more easily than brakes can stop a train that has built up speed and momentum. These cases might have had a very different outcome if coaches had been used from the start In fact, it’s better to start out using a coach and not use them later in the case, than it is the other way around.

The Ultimate Up-side to Using Divorce Coaches

Undoubtedly, the Collaborative divorce process may seem more complicated and require more maturity and stamina than other marital dissolution processes, but for those who can endure it, there are many long-lasting and meaningful benefits. Coaches are generally very beneficial to divorcing couples during their divorce. They help calm the waters and keep the divorce on track by containing heated emotions.

Going forward into their post divorce lives, the skills that have been learned in coaching are invaluable.  These couples often sustain better communication, problem-solving skills and compassion between them.   For families in transition, the children reap the benefits of having parents who can apply their communication and problem solving skills learned in coaching to their ongoing parenting relationship.  And, as one little boy said to his parents after their divorce, “I’m so glad you guys are friends again.” Children need the war to stop. Coaches can help.

By Arnold Cribari, a Westchester Collaborative Attorney,www.westchesterdivorcelawyer.com 

In her best selling book, “Eat Pray Love,” Elizabeth Gilbert described her experience with her own New York divorce:
 
“I started having to put legal pressure on my husband, doing dreadful things out of my worst divorce nightmares, like serving papers and writing damning legal accusations (required by New York State law) of his alleged mental cruelty – documents that left no room for subtlety, no way in which to say to the judge: “Hey, listen, it was a really complicated relationship, and I made  huge mistakes, too, and I’m really sorry about that, but all I want  is to be allowed to leave. (Here, I pause to offer a prayer for my gentle reader: May you never, ever, have to get a divorce in New York.)”
 
Elizabeth Gilbert is alluding to the problems caused by certain archaic divorce laws in New York.  New York is the only state in the U.S.A. where a spouse cannot obtain a no-fault divorce without an agreement.  Unlike every other state, New York does not have irreconcilable differences, incompatibility, or similar no-fault grounds for divorce.  The only grounds for obtaining a no-fault divorce in New York is known as a conversion divorce:  living separate and apart pursuant to a valid separation agreement for at least one year.  Divorces in New York on fault grounds (cruel and inhuman treatment, adultery, abandonment and constructive abandonment) can greatly increase the conflicts, disputes and costs, both financially and emotionally.
 
The New York State legislature has failed, time and again, over many years to reform our state’s divorce laws.
 
Elizabeth Gilbert in “Eat, Pray Love” further expressed her desperation in her petition to God to put an end to her New York divorce:
 
Dear God,
Please intervene and help end this divorce.  My husband and I have failed at our marriage and now we are failing at our divorce.  This poisonous process is bringing suffering to us and to everyone who cares about us. 

It is my humble request, then, that you help us end this conflict, so that two more people can have the chance to become free and healthy, and so there will be just a little less animosity and bitterness in a world that is already far too troubled by suffering.

I thank you for your kind attention.
 
Respectfully,
 
Elizabeth M. Gilbert
 
New Yorkers and their counsel have important decisions to make when addressing divorce grounds and marital fault.
 
If everyone consents to the divorce, which usually occurs once custody, visitation and all financial issues are settled, then it is common practice for a quick uncontested divorce to be engineered: one party testifies (at an inquest or in an affidavit) to fault grounds, typically constructive abandonment (refusing to have sex with the petitioning spouse for over one year), and the other spouse consents.  What if this testimony is not true?  For our laws to encourage giving false testimony, even when everyone consents, makes no sense.
 
Difficulties for New Yorkers are compounded when one spouse withholds giving consent to the divorce for strategic advantage, which probably happened in Elizabeth Gilbert’s divorce.  When divorce grounds are contested, both parties risk monumental legal fees, the decimation of their marital estate, exacerbating their conflicts and disputes, increasing their children’s suffering, and making the other parent of their children their worst enemy.
 
Such risks are taken for what benefit?  If the spouse who contests divorce grounds wins at trial, such victory is short-lived and a huge waste of money.  The party seeking the divorce can simply move to a neighboring State, establish jurisdiction there, and obtain a divorce there based on no fault grounds, such as irretrievable breakdown of the marriage.
 
It is also not in the interests of the State of New York for there to be such trials and relocations.  Divorcing couples, by and large, are not criminals or undesirables.  Very often, they are highly productive and talented people, who earn substantial income and pay substantial taxes.  Most judges hate divorce grounds trials, and they all have better things to do with their valuable time on the bench. 
  
What can a New Yorker considering a divorce do to avoid such a divorce nightmare?
 
If possible, stay out of court! Don’t be impulsive about a divorce. Make every reasonable effort to save the marriage by going with your spouse to the best marriage counselor you can find.  If marriage counseling is not mutually desired or possible, then consider divorce mediation or collaborative divorce.  There is a growing number of devoted divorce peacemakers in New York consisting of mediators, collaborative lawyers, mental health professionals (divorce coaches and child specialists) and financial experts, who practice these forms of alternative dispute resolution.  In a collaborative divorce, you will get all the help you need to make a divorce settlement that works for you, your spouse and your children, now and for the long term.   And the financial and emotional costs of a collaborative divorce are usually significantly less than such costs for a litigated divorce in the New York courts.
 
What if saving the marriage is impossible and your spouse won’t mediate or collaborate to resolve the divorce in New York?  Although this situation is fraught with risks, it may not be hopeless. There are honest, ethical and capable divorce lawyers and judges who will do their best to help you survive the New York divorce courts. 
 
Inspired by Elizabeth’s Gilbert’s “Eat Pray Love,” I will end with a prayer and petition to God:
 
Dear God,
 
I know that marriage is important to you, and divorce is not your favorite thing.  But I also believe that you want people to live whole and meaningful lives.  So, when a marriage is broken beyond repair, I can’t believe that you want people forced to stay in a conflict-ridden or loveless marriage.  And I know that you want children to grow up seeing respectful relationships between their parents, whether or not their parents are married, separated, or divorced.
 
It is my humble request, then, that you inspire divorcing couples to make every effort to avoid the adversarial court process by utilizing collaborative divorce or mediation so that “there will be just a little less animosity and bitterness in a world that is already far too troubled by suffering.”

I thank you for your kind attention.
 
Respectfully,
 
Arnold D. Cribari, Esq.
 
P.S.  It is my not so humble request to ask for your radical intervention in the New York State legislature so that the divorce laws in New York no longer exacerbate conflict and prolong the pain of the divorce process.

Study reveals 48 million Americans know someone who got so caught up in ‘winning’ their divorce that their family life, work life or social life suffered
 
A new study commissioned by Wakefield on behalf of the New York Association of Collaborative Professionals reveals one in five Americans, as in 48 million, know someone who got so caught up in ‘winning’ a divorce that their family, work or social life suffered.
 
The independent poll of 1,000 Americans also exposed demographic differences concerning what is often referred to as a “nasty” divorce:
 

• More to lose…or win: Americans with higher household incomes (at or above $50,000) were more likely to have witnessed someone suffer trying to “win” their divorce.
• Sandwich generation, feeling the squeeze: Respondents ages 35-54 were most likely to know someone who got so caught up in ‘winning’ their divorce that their family life, work life, or social life suffered. In addition, a 2007 survey by The American Psychological Association revealed 83% of women in this same age bracket said relationships with their spouse, children and family are the top source of their stress.
• No child’s play: With or without children of their own, respondents were nearly equally likely (20% vs. 22%) to know someone who was negatively impacted by trying to ‘win’ a divorce.

 
In recent weeks, a steady stream of media attention has focused on how divorce can negatively impact children as a result of the Gosselin family headlines. Nearly ten million viewers tuned-in for the May 25th season premiere of TLC’s Jon & Kate Plus 8, which left many Americans talking about the negative effects a nasty divorce could have on the Gosselins’ eight children.
 
“What many people do not realize is that they have the option for a less stressful, yet effective, divorce and dispute resolution model which addresses the emotional and financial well-being of all parties involved, especially children,” said MaryEllen Linnehan, president of the New York Association of Collaborative Professionals.
 
Collaborative Practice enables divorcing couples to resolve disputes respectfully and equitably without going to court. The process also empowers couples to make decisions about their own futures, unlike other divorce resolution models, which put decision-making in the hands of judges and other legal professionals.
 
Through Collaborative Practice, couples also gain the unique and comprehensive perspectives of a team of professionals, including a divorce coach, child specialist, financial specialist, and attorney, to help the family devise a solution tailored to the specific needs of each family member.
 
“By divorcing through Collaborative Practice, couples can avoid the stress of battling in a courtroom and work to achieve an equitable and peaceable resolution,” Linnehan said. “It is our hope that as more couples turn to Collaborative Practice, the number of Americans knowing individuals whose family, work, or social lives have suffered, as a result of trying to ‘win’ their divorce, will decrease.”

more to come…

more to come…

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By Mel Huff Times Argus Staff
MONTPELIER – After slugging it out in court for 15 years as litigator in family law, Nanci Smith has concluded that there’s often a better way for couples to divorce than by re-enacting the War of the Roses. Now Smith is one of a number of Vermont lawyers who is offering alternatives to the traditional court-battle model of divorce. A former client characterizes her approach as “Zen,” although Smith says she wouldn’t call it Zen with a capital Z.

She explains what she does as “trying to help people get through the divorce process, or civil union dissolution process, purposefully, mindfully and as humanelyas possible, given the circumstances.” Smith offers a separate family dispute resolution service – Law & Mediation Works – to clients that she believes will be best served by mediation. Although some people are well-suited to a non-adversarial divorce process, she says others are not. She notes that mediation is not appropriate in situations involving abuse or domestic violence: “There are cases where litigation is the only appropriate and safe avenue for people to go through.” Practicing in Montpelier, Chelsea and Williston, Smith brings the skills of a mediator and the experience of a family court lawyer to Law & Mediation Works. When she serves as a neutral mediator, she doesn’t provide legal advice to either party. In fact, she encourages clients to take the agreements they reach through mediation to their own lawyers before signing anything or submitting the agreements to the court. In mediation, clients typically identify issues, establish an agenda, do “homework” projects to ensure full disclosure of assets and work toward an agreement both feel is reasonable and can accept. One of the advantages of mediation is that the process is private and confidential. “It’s a safe environment for people to raise difficult issues that they may not want to have aired in the public forum of a court,” Smith observes. The dissolution of any state-sanctioned relationship such as marriage or a civil union must go through the court system; that means it will create a public record. But an agreement reached through mediation can be submitted to the court, minus accusations and counter-accusations, and the court will sign it, Smith explained. Another advantage of mediation, Smith said, is that it frees the partners from the court’s schedule and allows them more control over the pace of moving through their separation. People who are divorcing are often at different stages in accepting the breakdown of the relationship, Smith observed, and allowing time to adapt to the transition makes it easier to reach an agreement. Sometimes, however, what people want is for their lawyer to be their gladiator or pit bull or their shark. “That’s under-standable,” Smith says, “because divorce is so overwhelming. It’s as if there’s a death in the family, except nobody is bringing food. It’s a great loss. There’s sadness and anger and regret and fear. You have to work through all of those emotions to get to acceptance, and hopefully, a sense of freedom at the end.” If a couple can preserve some sense of decency, she says, they can move on “without ruining their relationship with somebody they once loved.” Choosing the “warrior path,” on
the other hand, can lead to a process that is “indecent and cruel and vicious.” Smith emphasized that there is now a continuum of options for how to go about uncoupling. Partners can choose litigation, mediation with a non-lawyer, mediation with a family court litigator – this is the Law & Mediation Works approach – or they can opt for collaborative law, a model just developing in Vermont. In the collaborative law process, both sides have lawyers, but the parties and the lawyers pledge to work out an agreement without using the threat of going to court as a bargaining chip. The process provides for four-way meetings and opportunities for lawyers to talk to the party on the other side of the dispute. If negotiations fail, both lawyers have to withdraw and the clients have to get new lawyers. That “creates an incentive for everybody to work out an agreement,” Smith says. Smith calls the emerging alternatives for resolving family disputes exciting. “They encourage ownership of what you want your future to look like,” she says.